ROBERTA TEPPER v. RICARDO URDINARAN, M.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6468-05T26468-05T2

ROBERTA TEPPER, ADMINISTRATOR AD

PROSEQUENDUM OF THE ESTATE OF

LYNDA TEPPER,

Plaintiff-Appellant/ Cross-Respondent,

v.

RICARDO URDINARAN, M.D.,

Defendant-Respondent/

Cross-Appellant,

and

MEDICAL ONE, MICHAEL DUNN, M.D.,

ANILA AMIN, M.D., PINAKIN AMIN, M.D.,

CARL DEHYLE, D.O., ANN MURRAY, P.A.,

and DAVID GABROS, M.D.,

Defendants.

_______________________________________

 
Argued telephonically February 1, 2008 - Decided

Before Judges Lintner, Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County,

L-1205-02.

Jeffrey M. Kornblau argued the cause for appellant/cross-respondent (Kornblau & Kornblau, attorneys; Mr. Kornblau and Lynn Sare Kornblau, of counsel and on the brief; Robert T. Szostak, on the brief).

Donald Grasso argued the cause for respondent/cross-appellant (Orlovsky, Grasso, Bolger, Mensching & Daley, attorneys; Mr. Grasso, of counsel; Colleen L. Brandt, on the brief).

PER CURIAM

Plaintiff, Roberta Tepper, administrator ad prosequendum for the Estate of Lynda Tepper, appeals from a no cause for action judgment and an order denying her motion for a new trial following an adverse jury verdict in favor of defendant, Dr. Ricardo Urdinaran, in a medical malpractice case brought on behalf of her deceased sister Lynda. Plaintiff asserts trial error. Defendant cross appeals, asserting that the trial judge erred in declaring him not available for trial. We reverse the judgment and remand for a new trial and dismiss defendant's cross-appeal as moot.

We recite the relevant facts established at trial. On November 4, 1999, thirty-eight-year-old Lynda Tepper was seen by Dr. Michael Dunn at Medical One with complaints of constipation and blood in her stool. Lynda had survived a brain aneurysm five years earlier that left her with some short-term memory problems. Dunn performed a hemocult test and confirmed that she did in fact have blood in her stool. Dunn then performed an anoscopy, a procedure to view inside the rectum, and determined that she did not have any internal hemorrhoids. Dunn noted in a report dated July 19, 2002, that he referred her to defendant, "a colo-rectal surgeon," for follow-up diagnosis and treatment of her rectal bleeding.

Lynda saw defendant on November 8, 1999. Based solely upon a visual external examination and a subsequent digital examination, defendant concluded that Lynda had minimally developed external hemorrhoids, as well as "large and minimally tender" internal hemorrhoids "with no evidence of recent thrombosis [or] ulceration." Notably, defendant did not perform an anoscopy or any other examination that would have permitted him to view inside her rectum. Additionally, defendant concluded that Lynda did not have any blood in her stool, although he did not perform a hemocult test. He diagnosed "rectal bleeding of undetermined etiology" and scheduled a flexible sigmoidoscopy and barium enema.

Defendant provided Lynda with written instructions on how to treat her hemorrhoids and instructed her to schedule a flexible sigmoidoscopy and barium enema. Lynda wrote on the instructions "F 7th" as a reminder of her appointment for the sigmoidoscopy. According to Lynda's mother, Sandra Readler, Lynda would jot things down to make up for her short-term memory problems. Although defendant wrote to Dunn on November 8, 1999, and advised that his impression was that Lynda had "a rectal bleeding of undetermined etiology," Lynda left defendant's office that day with the understanding that her bleeding was due to hemorrhoids. She told her mother and sister, Roberta, that her bleeding was due to her hemorrhoids.

On December 7, 1999, Lynda went to Shore Medical Hospital for her scheduled sigmoidoscopy. According to Lynda, she had prepared her colon as instructed for the test. However, after inserting the scope in Lynda's rectum, defendant encountered a blockage. Lynda claimed that defendant suddenly took off his gloves, threw them to the ground, angrily informed her that she had wasted his time by not preparing properly, and directed her to return another day. Her sister testified that Lynda told her that defendant stormed out of the room and left the tube inside her. Lynda did not go back to defendant because she felt humiliated by defendant's conduct.

Lynda went home very upset and told Roberta and Readler, what had happened. Unaware that there was any need to rush, Readler called Lynda's neurologist, Dr. Rodney Bell, and scheduled an appointment for Lynda. Bell then arranged for Lynda to see Dr. Franz Goldstein, who referred her to Dr. Anthony Infantolino at Thomas Jefferson University Hospital in Philadelphia for a colonoscopy. Infantolino performed the procedure on April 24, 2000. When asked on direct examination why she waited six months to have a colonoscopy, Lynda testified that defendant told her that her bleeding was from her hemorrhoids and he did not indicate that there was any urgency, thus she treated herself with Preparation H.

Infantolino discovered a lesion obstructing Lynda's sigmoid colon, twenty to twenty-five centimeters from the anal verge. Notably, in his report, Infantolino stated that he was barely able to "pass through the lesion and pass the scope to the cecum" and that "[t]he prep on the proximal side of the lesion was poor."

The following day, Lynda underwent a left hemicolectomy. The surgeon, Dr. Robert Fry, determined that the cancerous tumor cells had perforated the wall of her colon. He removed the tumor, Lynda's left ovary and ureter, as well as twenty-two lymph nodes, eight of which proved to be cancerous. Lynda's cancer was ultimately categorized as a stage three, T4 cancer (the most advanced type of primary cancer). Notably, in his report, Fry commented that Lynda had been experiencing a dull pain in her left lower abdomen for approximately one month prior to her surgery.

Lynda subsequently underwent repeated rounds of chemotherapy and radiation, and she was pronounced cancer-free in November 2000. However, new malignancies subsequently developed in her liver, lungs, spine, collarbone, and eye. She passed away on August 23, 2002.

Dr. Richard Goldstein, a board certified general and colo- rectal surgeon, testified on behalf of plaintiff. Goldstein summarized what he believed to be defendant's failure to properly treat Lynda:

I have two major opinions concerning [defendant's] care. The first was that he failed to diagnose her cancer when he should have, and the second is that he conveyed to her . . . that she had hemorrhoids as a source of her bleeding when she could not possibly have had hemorrhoids and thereby took away any sense of urgency for her to seek follow up care regarding her bleeding.

Noting that it was not possible to make a diagnosis of internal non-thrombosed hemorrhoids simply through a digital exam, Goldstein explained how an anoscope worked and that it was used to look inside the rectum and diagnose internal hemorrhoids. He testified that it would be "impossible for [defendant] to make a diagnosis . . . of internal hemorrhoids based upon his finger or digital rectal examination."

Nonetheless, according to Goldstein, defendant communicated this ill-founded diagnosis to Lynda, provided her with documentation on how to treat her supposed hemorrhoids, and led her to understand that her bleeding was caused by hemorrhoids. In support of that opinion, Goldstein cited the written instructions defendant gave to Lynda for treating hemorrhoids. He also cited defendant's discovery deposition, reading the following question and defendant's answer to the jury:

Question: Why were her problems probably caused by hemorrhoids? Answer: Why? She had hemorrhoids large enough that could explain the rectal bleeding.

According to Goldstein, defendant also deviated from the accepted standard of care by not: (1) attempting to complete the sigmoidoscopy on December 7, 1999; (2) giving Lynda another enema; or (3) attempting to flush out or bypass the stool after inflating her colon. He stated that poor preparations for sigmoidoscopies occur on a daily basis. Goldstein believed that the photographs taken by defendant using the sigmoidoscope indicated that he could have bypassed the stool. He acknowledged that stopping and rescheduling a sigmoidoscopy is generally an option, but stated that it was not appropriate here since Lynda had already waited one month and had symptoms consistent with colon cancer. He noted that, at defendant's deposition, defendant admitted that he had not considered the possibility that a tumor had interfered with Lynda's preparation. Defendant also did not impress upon Lynda the importance of returning for another scope as soon as possible. In Goldstein's view, defendant's failure to re-prep Lynda and complete the sigmoidoscopy increased the risk posed by her cancer by allowing it time to progress to the point of perforation.

Summarizing his opinion at the conclusion of his direct testimony, Goldstein testified that defendant breached the standard of care in diagnosing Lynda with hemorrhoids, as well as by not bypassing stool when performing the sigmoidoscopy. He concluded that both deviations increased the risk and were substantial factors in "the harm and death" by allowing the cancer to perforate the colon.

Dr. Barry Singer, an oncologist, testified on behalf of plaintiff that, because Lynda's cancer was not diagnosed until April 2000, her chances of survival were decreased by fifty-five to sixty-five percent to between ten and twenty percent. He explained that the most critical factor in assessing her chances was the occurrence of the perforation in her colon, which allowed cancer cells to disperse into her body. Based upon Lynda's statement in April 2000 that she had been experiencing dull pain in the left lower abdomen for approximately one month, Singer concluded that the perforation developed at that time. He pointed out that, had the perforation developed months earlier, her symptoms would have been much more severe.

According to Singer, had Lynda been diagnosed four-and-one-half months earlier, her colon would not have perforated, her tumor would have been at most a T3 and much smaller, there would have been fewer than four lymph nodes involved, and her later metastases could have been prevented. He opined that Lynda would have had a seventy percent chance of a disease-free, five-year survival had she been diagnosed in December 1999 with no perforation and only one affected lymph node. He stated that, if two, three, or eight nodes had been affected at that time, her chance of survival would have decreased to sixty percent, fifty-five percent, and thirty-five percent, respectively. Singer asserted that, if all eight lymph nodes had been affected in December, Lynda would have had only a thirty to forty percent chance of survival.

Singer conceded that, oftentimes, a four-month delay in diagnosis does not make a difference when dealing with colon cancer. He acknowledged that Lynda's cancer was not more aggressive than the average colon cancer. He further admitted that if the perforation had occurred in December there would have been no difference in Lynda's outcome. Lastly, Singer conceded that colon perforations are not always immediately symptomatic.

Defendant did not appear at trial. However, Carolyn Rusek, the nurse who was present during the aborted sigmoidoscopy, testified for the defense. Rusek related that, in all the years that she has been involved in the endoscopy suite, she did not recall a doctor storming out of the room leaving the scope inside a patient. Although Rusek prepared a note following the appointment that stated that defendant discussed his recommendations and a follow-up plan with Lynda, she had no recollection of the specifics of the plan.

Dr. James Frost, a board certified general surgeon, testified on behalf of the defense that he understood that plaintiff's theory of the case was that defendant had deviated from the standard of care by incorrectly diagnosing internal hemorrhoids and by failing to proceed with the sigmoidoscopy on December 7, 1999. With respect to the former theory, Frost conceded that the best way to diagnose internal hemorrhoids is with an anoscope and that a definitive diagnosis cannot be made based upon a digital examination. However, a physician is entitled to make a presumptive digital diagnosis, as defendant did, with the intent of scoping the patient at a later date. Frost thus refused to fault defendant for failing to immediately proceed with an anoscopy, since defendant intended to follow-up with a sigmoidoscopy. Frost rejected the notion that defendant definitively told Lynda that her bleeding was due to internal hemorrhoids, noting that defendant expressly wrote to Dunn that her bleeding was of undetermined etiology. However, when confronted with defendant's deposition testimony that large hemorrhoids could explain rectal bleeding, Frost testified that defendant told Lynda that she had hemorrhoids but would not concede that he told her they were bleeding.

Frost also opined that defendant did not violate the standard of care by failing to re-prep Lynda and complete the sigmoidoscopy on December 7, 1999. Frost maintained that he has never known a gastroenterologist or surgeon to re-prep a patient for a sigmoidoscopy on the spot. He stated that the decision whether or not to proceed without a re-prep depends on the amount and type of stool encountered on insertion of the scope. He explained that thin amounts of stool can be flushed out, but where, as here, there was a solid stool obstruction, which likely could not be safely bypassed, the physician is not required to proceed. Frost also noted that, if there was stool in Lynda's lower colon, there was likely more stool above. In sum, Frost was of the opinion that defendant was not required to proceed since it was an elective exam and the condition of Lynda's colon was such that there was a high risk of perforating her bowel due to visual impediments.

Frost conceded that defendant made a finding that Lynda had no blood in her stool without performing a hemocult test. He acknowledged that usually blood found in the stool is not consistent with hemorrhoids as the source of the blood. Frost also agreed that Lynda's sigmoidoscopy needed to be completed expeditiously following the failed attempt and, based upon his review of defendant's records, no one from defendant's office ever communicated to Lynda the urgent need for the test.

Dr. David Sharon, a board certified medical oncologist, testified on behalf of the defense that, had Lynda been diagnosed in mid-December 1999, her cancer still would have been a third stage T4 cancer, and she would have had only a thirty percent chance of survival. He stated that Lynda's cancer was a typical slow progressing colon cancer and that, consequently, the three or four month delay in her diagnosis did not have a significant impact on her prognosis.

Sharon believed that Lynda's perforation had already occurred in December 1999. He noted that many patients do not have significant complaints despite perforation, pointing out that abscesses, such as Lynda developed, sometimes limit the symptoms. Sharon acknowledged that Lynda complained of dull, left abdominal pain that began in March, but insisted that that did not necessarily mean that the perforation did not already exist.

Sharon maintained that node involvement, and not perforation, was the key in establishing the prognosis. He pointed out that there was still a greater than fifty percent chance of a cure with perforating cancer provided there was no node involvement. Sharon was persuaded that the majority of the affected lymph nodes removed from Lynda's body would have been cancerous in December, and that it would have taken only four for her prognosis to have been the same. Sharon conceded, however, that Lynda might not have had some of the tissue changes outside her colon had she been diagnosed in December, and he acknowledged that, in the end, the delay in her diagnosis could have reduced her chances by ten to fifteen percent.

During trial, both parties repeatedly showed the jury an unmarked copy of the November 8, 1999, letter from defendant to Dunn, which provided in pertinent part:

The abdomen is soft, non-tender, with no organomegalies or masses. There is some increased tympanism in the left upper quadrant. There are no palpable masses or organomegalies; the bowel sounds are normal. The rectal examination shows minimally-developed external hemorrhoids with no evidence of anitis. The finger examination shows a moderately-tonic sphincter with no pain suggestive of fissure. The internal hemorrhoids are large and minimally tender posteriorly; but with no evidence of recent thrombosis and ulceration. There is no blood in the stool.

The impression is that Ms. Tepper has a rectal bleeding of undetermined etiology.

Although the judge cautioned counsel to check the exhibits closely before they were submitted to the jury, it was discovered after the jury rendered its verdict that the November 8 letter had been inadvertently given to the jury with inappropriate markings. Specifically, those portions of the letter that were highlighted by markings were: (1) defendant's impression of "rectal bleeding of undetermined etiology" had been circled; (2) the diagnosis of "internal hemorrhoids are large and minimally tender posteriorly" was underlined; (3) plaintiff's medical history that she was "left some minor neurological changes" following brain aneurysm surgery five years ago was underlined; and (4) "The rectal examination shows minimally-developed external hemorrhoids with no evidence of anitis" was underlined.

During the initial stages of the charge conferences held prior to the testimony from the last witness, the judge addressed what he was going to charge the jury concerning plaintiff's theory of liability. He stated:

First, that [defendant] failed to complete the required testing and to diagnose the plaintiff's colon cancer, this obviously in December of . . . 1999. And second, that he failed to inform the plaintiff of the urgency of the need to determine the cause of her bleeding[,] thereby in both instances increasing the risk that was previously posed by her colon cancer.

When plaintiff's counsel interjected that those were not the two deviations asserted, the judge stated:

Well, then let's focus our attention on that because those were the notes that I took from the doctor's testimony, that is

. . . [he] testified . . . that the defendant failed to diagnose the cancer when he should have and that he told her that he took away her sense of urgency with respect to the diagnosis by telling her that she had [h]emorrhoids.

Disagreeing with the judge's comments, both counsel informed the judge that the first theory was that defendant deviated by diagnosing her with internal hemorrhoids and advising her that they were the cause of her bleeding thus causing her to delay further tests, and the second theory was failing to proceed with the sigmoidoscopy.

Revisiting the issue after the close of testimony later that day, counsel essentially agreed and advised the judge that one of the theories was that the doctor deviated by misdiagnosing hemorrhoids as the cause of her bleeding thus leading her to assume that there was no urgency to have a follow-up test.

The next morning, prior to closing arguments, plaintiff's counsel reiterated the assertion that the first opinion was the hemorrhoid deviation and the second the failure to proceed. The judge responded that, normally, because they are not in dispute, he would explain the concepts or elements of both plaintiff's and defendant's claims to the jury along with the applicable burdens of proof. He noted that after reviewing Goldstein's video taped testimony it was still his view that

the record will reflect that Dr. Goldstein's testimony was that [defendant] deviated from the standard of care by failing to complete the required testing and to diagnose the plaintiff's cancer condition as of December, as one deviation.

And as a separate deviation by informing her that she had hemorrhoids and allowing her to conclude that her hemorrhoids were the source of her bleeding, that he deprived her of -- and these are my words, not his -- but the substance of it is that in doing so, he deprived her of any sense of urgency with respect to the need for the follow up testing.

Thereby in each instance with each of those deviations increasing the risk to her that was posed by her pre-existing condition and that that increased risk was a substantial factor in bringing about her condition.

He decided that, "[i]n view of the . . . different perceptions" of Goldstein's testimony, he would "not undertake to explain to the jury with any degree of factual precision what [his] view of Doctor Goldstein's testimony [was] . . . [and] leave that to counsel in their arguments," thus permitting counsel to be "perfectly free from their respective perspectives to argue the matter and the evidence as they see fit." He announced that he would

abandon the effort to explain to the jury in [his] terms what [he] believed the evidence that the plaintiff presented in terms of the specific factual assertions of deviation [was] . . . [and] limit [his] remarks . . . to explaining to the jury what the legal definition of a deviation from the standard of care is . . . and . . . allow the jury to conclude based on what they've heard from the evidence and what they ascertain from closing argument are the deviations that they find the evidence has established.

The judge also withdrew from the visual demonstration the two slides that had been prepared entitled "Plaintiff's Claims and Defendant's Claim" and decided not to "discuss them with any degree of factual detail with respect to what the specific factual claims are." Neither party objected to the judge's decision to limit his remarks relative to the theories respecting defendant's alleged deviations.

In closing arguments, defense counsel asserted that even if the jury concluded that defendant deviated in diagnosing hemorrhoids because either there were no hemorrhoids or he could not make the diagnosis, the jury must still decide whether defendant told Lynda they were the cause of her bleeding. Asserting that defendant never told her that the hemorrhoids were the cause of her bleeding, defense counsel argued, "[w]hy was she coming back for the sigmoidoscopy and the barium enema in the first place if they already knew the cause of her bleeding?"

Plaintiff's counsel argued at length that defendant misdiagnosed her as having hemorrhoids, led her to believe that they were the source of her bleeding, and that the reason the sigmoidoscopy test was scheduled a month later rather than sooner was to confirm that diagnosis. He also argued that defendant deviated by not completing the sigmoidoscopy.

In his instructions, the judge stated the following regarding plaintiff's theory of recovery:

The plaintiff's claim, as you know, is centered as I told you on the first day, in the concept of medical negligence, or some times medical malpractice. And it is defined in the law as conduct by the physician under the circumstances presented that deviates from the standard of care applicable to physicians in that doctor's circumstance. That's the general description and I want to go through with you what the particular -- to a certain extent, what the particular claims in this regard are.

First, you'll note as the plaintiff's attorney has suggested, that there are two separate claims here by the plaintiff with respect to an asserted deviation by [defendant]. One claim relates to what happened at the office visit in November when he first met her, and the second claim has to do with what happened at Shore Memorial Hospital a month later in December when the sigmoidoscopy procedure was halted. And you've heard the plaintiff describe why the plaintiff believes that the conduct of the doctor on either occasion constituted a deviation from the standard of care.

The first instance in November at the office by reason of the examination and the diagnosis with respect to hemorrhoids and the like, and in the second instance, with respect to the failure to complete the sigmoidoscopy process and to find the cancer.

. . . .

The . . . I've called this slide failure to diagnose. Frankly, I wish I would have called it something else but it's already up there and . . . the subject matter is what I want to talk to you about. Instead of failure to diagnose, I would ask you to call this slide deviation from the standard of care because the deviation in this case relates to a number of particular actions or omissions that you've heard described with respect to both the November and the December interactions. But the legal definition of deviation from the standard of care is the same in either case.

. . . .

The plaintiff's claim is for either or both of two asserted deviations. One from the meeting with her in November in his office, one from the failure to complete the sigmoidoscopy . . . in December. What did he do . . . in December in the hospital, and did what he did -- was what he did consistent or not consistent with the standard of care applicable to him.

Explaining that the deviation respecting defendant's conduct at the hospital did not include inappropriate comments, the judge again referred to plaintiff's deviation theory regarding the sigmoidoscopy examination, saying:

The deviation there that is asserted is the failure to complete the sigmoidoscopy and the failure to diagnose at that time the fact that she had the colon cancer. And again, you will decide based on your view of the evidence and your view of the applicable standard whether under those circumstances what he did . . . or did not deviate from the standard of care.

Assuming that you find that either or both of the asserted deviations has been established by the plaintiff by a preponderance of the credible evidence, either or both, you would then have decided that he did deviate. If you decide that he did deviate, you would then turn to the question of increase of risk.

Although plaintiff's counsel voiced a number of objections following the judge's charge, no objection was made as to the method in which the judge described plaintiff's asserted theory of defendant's deviations.

Only the first of ten interrogatories in the jury questionnaire dealt with deviation. It asked, "Has Plaintiff established that [defendant] was negligent, that is, that he deviated from accepted standards of care applicable to surgical practice in his diagnosis of Plaintiff's condition?" Returning the next day, while the jury was still deliberating, the judge presented counsel with a revised first jury interrogatory purportedly setting forth both of plaintiff's alleged deviations. Defendant's counsel agreed to submit the revised questionnaire to the jury. Plaintiff's counsel objected, explaining that although he believed that the issues had been improperly phrased and communicated to the jury, submission of the new interrogatory "would create massive confusion by changing this A, because that's not what the original charge was; B, that we don't even know where the jury is, they could be beyond this question." The judge determined that he would not submit the revised interrogatory absent consent of both parties. The jury unanimously answered the first interrogatory, "No."

We combine the contentions raised by plaintiff in Points I and II of her appellate brief. Plaintiff's counsel asserts that the failure to describe plaintiff's theories regarding defendant's alleged misdiagnosis of hemorrhoids, coupled with the jury exhibit highlighting certain aspects of defendant's November 8 letter to Dunn, resulted in a clear and convincing miscarriage of justice requiring a new trial. She maintains that "[b]ecause the court charged on 'a failure to diagnose' cancer and not on the direct negligence of the 'misdiagnosis' of hemorrhoids . . . the jury was incorrectly instructed."

Repeating the argument made at her motion for new trial, plaintiff suggests that a thorough review of the judge's evidence ruling indicates that he misunderstood Dr. Goldstein's testimony, thinking that the diagnosis of hemorrhoids was only related to plaintiff's delay in seeking treatment rather than negligent conduct, thus confusing the negligent diagnosis of hemorrhoids with the failure to diagnose cancer and allowing plaintiff's theory to fall through the cracks. Plaintiff also argues that the circled words, "rectal bleeding of undetermined etiology," in the November 8 letter highlighted "the single most heated issue in the case," thereby unfairly influencing the jury.

Denying plaintiff's motion, the judge found that, throughout the trial, sentences were highlighted technologically for the jury by enlarging and separating out certain sentences, thus drawing the jury's attention explicitly to the particular sentence. Finding it was improper for the document to go into the jury room in the form that it did, the judge, nevertheless, framed the issue:

The question then is whether I am satisfied on that factual record that under those circumstances the submission of the exhibit in that inappropriate form to the jury had the capacity adversely to impact . . . the jury's determination, and as a result should the jury's determination be set aside.

The judge continued:

The answer is no. And the reason that the answer is no is that however inappropriate and careless that submission to the jury was, it did not accomplish anything that hadn't been accomplished six times before in a technologically superior fashion during the course of the evidence.

There was in that entire document some other material that was of relevant impact to the issues in this case. Most of it was not. But . . . it was made very clear to the jury several times . . . [that the] single . . . most significant element of that document was the highlighted portion -- and I say highlighted by which I mean highlighted to be sure inappropriately with the circle in the form submitted to the jury -- but more significantly from my point of view highlighted by both sides during the course of the trial by taking that sentence . . . and magnifying it and putting it up on the screen all by itself.

In that context I am more than satisfied that the inadvertent [but] . . . careless . . . submission of the document in that form to the jury . . . did not have and could not have had the capacity to have affected the jury's verdict.

The principles governing determination of a motion for new trial are well settled. A trial court must order a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). An appellate court must adhere to essentially the same standard when reviewing a trial court's decision in this regard. Dolson v. Anastasia, 55 N.J. 2, 6 (1969). It must give deference to the trial court's feel of the case as to matters such as the demeanor and credibility of witnesses, but otherwise conduct an independent review of the record in order to determine the justness of the result. Carrino v. Novotny, 78 N.J. 355, 360-61 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977). An appellate court may overturn a jury verdict "'only if [that] verdict is so far contrary to the weight of the evidence as to give rise to the inescapable conclusion of mistake, passion, prejudice, or partiality.'" Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 134 (1990) (quoting Wytupeck v. City of Camden, 25 N.J. 450, 466 (1957)) (alteration in original).

A jury verdict must be "entirely free from the taint of extraneous considerations and influences." Panko v. Flintkote Co., 7 N.J. 55, 61 (1951). "The test for determining whether irregular influences on [a jury] merit a new trial is whether they 'could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge.'" Brown v. Kennedy Mem'l Hosp., 312 N.J. Super. 579, 590 (App. Div.) (quoting Panko, supra, 7 N.J. at 61), certif. denied, 156 N.J. 426 (1998). Notably, evidence of actual influence is not needed; rather, the simple capacity to influence is sufficient. Ibid.

The fundamental principles regarding jury instructions and interrogatories are equally well developed. Proper jury instructions are essential to a fair trial. Cavanaugh v. Skil Corp., 331 N.J. Super. 134, 160 (App. Div. 1999), aff'd, 164 N.J. 1 (2000). A trial judge is obliged to give a comprehensible explanation of the questions that the jury must resolve and to inform the jury of the law applicable to the issues in the case. Myrlak v. Port Auth. of N.Y. & N.J., 302 N.J. Super. 1, 19 (App. Div. 1997) (citations omitted), rev'd in part, 157 N.J. 84 (1999). Appropriate "[j]ury charges 'must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them.'" Velazquez v. Portadin, 163 N.J. 677, 688 (2000) (quoting Jurman v. Samuel Braen, Inc., 47 N.J. 586, 591-92 (1966)). "'When reviewing a trial court's instruction to the jury, an appellate court must read the charge as a whole' and should not reverse 'when the charge adequately conveys the law and does not confuse or mislead the jury.'" Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 487 (App. Div.) (quoting Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997)), certif. denied, 165 N.J. 607 (2000).

It has been acknowledged in the context of a medical malpractice case that "'[a] charge is a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations.'" Das v. Thani, 171 N.J. 518, 527 (2002) (quoting State v. Martin, 119 N.J. 2, 15 (1990)). A judge "'must explain the controlling legal principles and the questions the jury is to decide.'" Ibid. (quoting Martin, supra, 119 N.J. at 15). Accordingly, in cases such as this, the court is required to tailor its instructions to the theories and facts presented in the case. Velazquez, supra, 163 N.J. at 689. A jury charge must "'plainly spell out how the jury should apply the legal principles to the facts as it may find them.'" Id. at 688 (quoting Jurman, supra, 47 N.J. at 491-92). "The failure to tailor a jury charge to the given facts of a case constitutes reversible error where a different outcome might have prevailed had the jury been correctly charged." Reynolds v. Gonzalez, 172 N.J. 266, 289 (2002).

"The purposes of submitting interrogatories to the jury 'are to require the jury to specifically consider the essential issues of the case, to clarify the court's charge to the jury, and to clarify the meaning of the verdict and permit error to be localized.'" Sons of Thunder, supra, 148 N.J. at 419 (quoting Wenner v. McEldowney & Co., 102 N.J. Super. 13, 19 (App. Div.), certif. denied, 52 N.J. 493 (1968)). Because oftentimes an "entire case turns on how the jury answers the questions on the verdict sheet . . . [t]he framing of those questions in clear and understandable language cannot be overemphasized." Benson v. Brown, 276 N.J. Super. 553, 565 (App. Div. 1994). Special interrogatories are encouraged in professional malpractice cases to elicit jury findings with precision, especially where causal relationship is disputed. See Conklin v. Hannoch Weisman, 145 N.J. 395, 411-12 (1996). It is necessary to hold a conference with counsel regarding jury interrogatories before closing argument "so that counsel are in a position to know exactly what questions will be put to the jury for its consideration." Benson, supra, 276 N.J. Super. at 565. Although agreement by counsel on jury interrogatories is desirable, "[i]n the end the judge has the ultimate responsibility for insuring the correctness of the verdict sheet." Ibid.

It appears from the judge's comments during the charge conference and when he gave his instructions to the jury that he was somewhat confused or had difficulty understanding plaintiff's theory respecting defendant's alleged misdiagnosis of hemorrhoids. The judge's suggested revision of the jury interrogatories shows that he was concerned with the lack of specificity of the general interrogatory submitted on the issues of deviation.

The parties stipulated that Lynda suffered from cancer at the time of her examinations by defendant. Both parties understood plaintiff's theory that defendant's alleged second deviation, in failing to continue the sigmoidoscopy examination, was causally related to a failure on the part of defendant to diagnose plaintiff's cancer. Whether expressed in terms of misdiagnosis or diagnosis, both parties understood and explained to the judge plaintiff's first theory that defendant's alleged deviation was in concluding that plaintiff suffered from internal hemorrhoids that were the cause of her bleeding and thus resulted in her delaying treatment out of a lack of urgency. The lack of urgency in plaintiff's mind was dependent on a finding that defendant diagnosed Lynda's hemorrhoids as the source of her bleeding. The issue was one of credibility, which was crucial to plaintiff's theory.

Defendant's November 8 letter to Dr. Dunn established defendant's diagnosis of hemorrhoids but contradicted Lynda's testimony that defendant told her they were the source of her bleeding. The jury had no way of knowing who circled the words indicating that the source of the bleeding was unknown. It could easily have concluded that Dr. Dunn, the person receiving the letter, encircled the words contradicting plaintiff's claim. To be sure, defendant's credibility was called into question by the excerpt read from his discovery deposition. Viewed in a vacuum, we agree with the judge's decision that the November 8 letter with the improperly highlighted area did not, by itself, have a capacity to influence the jury. However, when consideration is given to the lack of a clear explanation and a specific jury interrogatory expressing the factual issues to be decided in reaching its conclusions on each of plaintiff's asserted deviations, it is our view that submission of the letter with the highlighted area had a real capacity to influence the jury to reach a different result than it otherwise might have reached. Based upon our review of the entire transcript, we are satisfied that the cumulative effect of the highlighted letter and lack of specificity in the jury instruction and interrogatory was "clearly capable of producing an unjust result." R. 2:10-2. A new trial is therefore required.

We briefly address plaintiff's Point III contention. At the beginning of the trial, counsel disagreed with whether the evidence would establish that defendant held himself out as a general surgeon or a colo-rectal surgeon and what standard would apply. The judge advised counsel that, if there was a factual issue as to whether defendant held himself out as a general surgeon or a specialist, he would let the jury determine the issue. Goldstein described colo-rectal surgery as a subspecialty under general surgery. During plaintiff's direct examination of Goldstein, counsel attempted to establish that defendant was board certified as a colo-rectal surgeon through Goldstein's reading of Dunn's discovery deposition:

[PLAINTIFF'S COUNSEL]: Based on your view of the materials, and . . . specifically the deposition of Doctor Dunn which you read, are you aware of the relationship between Doctor Dunn and [defendant]?

[DEFENSE COUNSEL]: Objection, Your Honor.

THE COURT: Relevance?

[PLAINTIFF'S COUNSEL]: Well, I -- I was going to ask to see you for a second, Your Honor.

(Side Bar Conference)

[PLAINTIFF'S COUNSEL]: I -- I didn't want to have any problem with the Court Order, but I thought that we were okay with this. I was going to ask him three questions, that he was his referral source and that Doctor Dunn believed -- and I'm going to read it right out of the testimony -- that [defendant] was a board certified colorectal surgeon and that's why he referred him and the basis of why, and then move on.

THE COURT: Objection sustained.

In his deposition, Dunn answered, "yes" when he was asked whether he was familiar with defendant's medical specialty. When asked what he understood defendant's specialty to be, he responded, "Well, he was a general surgeon as well as a colon and rectal surgeon." Dunn stated that he "believe[d]" defendant was board certified as a subspecialty in colo-rectal surgery. When asked how he arrived at that understanding, Dunn stated, "I don't know. I just, I guess I assumed that. I think on his letterhead it even says that." At the conclusion of the trial, the only evidence that defendant held himself out as a specialist was his letterhead, which indicated,

"Diplomate American Board of Surgery General, Trauma & Colorectal Surgery Certified Laser & Laparoscopic Surgery."

At the charge conference, the judge told counsel that he was going to define deviation by referring to the standard of an average surgeon because that was the testimony about the status that defendant held himself out to be. There was no objection voiced by plaintiff at that time. After the jury was charged, however, plaintiff's counsel objected, stating that "[c]onsistent with plaintiff's prior objection we object to the charge to the jury that defendant represented himself as a general surgeon."

Plaintiff asserts on appeal that the judge erred in sustaining defendant's objection when plaintiff was questioning Goldstein respecting Dunn's knowledge of defendant's specialty. We disagree. Dunn's deposition testimony was somewhat equivocal. Moreover, it was improper to permit Goldstein to characterize what Dunn believed at the time he referred plaintiff to defendant. Such testimony would at best be speculative. Under the circumstances, the judge did not err in sustaining defendant's objection.

The only evidence bearing on defendant's certified specialty was his letterhead. Defendant asserts on appeal that the letterhead indicates that he was board certified as a general surgeon and limited his practice to general surgery, trauma, and colon and rectal surgery. Plaintiff argues that it should be interpreted as indicating that he was certified in colon and rectal surgery. Although somewhat ambiguous, the letterhead does not clearly establish that he held himself out as certified in colo-rectal surgery, or that he limited his surgical practice to specific areas. Generally, an ambiguous phrase is held against the party that created it. However, absent direct testimony from Dunn respecting his knowledge and thoughts as to defendant's specialty at the time he referred plaintiff, we agree that the evidence was insufficient to establish that defendant held himself out as a specialist in colo-rectal surgery.

Lastly, we address defendant's cross-appeal. In November 2005, the judge adjourned the trial at defense counsel's request based upon a letter from defendant's treating psychiatrist indicating that defendant was suffering from major depressive and panic disorders and was unable to attend trial. A subsequent request by defendant for an adjournment was denied. However, defendant was given the opportunity to demonstrate that his illness prevented him from attending trial. After taking into consideration the deposition testimony of defendant's treating psychiatrist and the results of an independent psychiatric examination performed at plaintiff's request, the judge determined that defendant had not established that he was medically unavailable. The judge permitted the defense limited use of defendant's deposition testimony. The judge instructed the jury that defendant chose not to be at trial although he was ordered by the court to appear, and that it was entitled to draw an inference that his testimony, if given, would not have been helpful to his position in the case.

On appeal, defendant argues that the trial should have been adjourned until defendant could appear and participate. He also argues that the judge erred in ruling that he was unavailable and charging the jury and giving a negative inference instruction. We have no way of knowing defendant's current state of health and whether it prevents him from participating in trial. Because we reverse, defendant's present state of health and whether he is able to participate in a retrial is subject to updated medical information, examination, and review. The judge's previous ruling regarding defendant's nonappearance is not binding on remand. We, therefore, decline to address the issue and dismiss defendant's cross-appeal as moot. The judgment is reversed and the matter remanded for trial.

Prior to trial, plaintiff settled with Dr. Carl Dehyle and Medical One. Stipulations of dismissal were filed as to defendants Dr. Michael Dunn, Anila Amin, Ann Murray, Dr. Pinakin Amin, and Dr. David Gabros. Trial proceeded against defendant alone.

That report, found in the appellate appendix at Pa362, was not admitted into evidence.

Both Readler and Roberta testified that Lynda told them that defendant advised her that her bleeding was from hemorrhoids.

Lynda's video deposition testimony was presented.

Goldstein agreed that Lynda's perforation likely occurred in March 2000 based upon the dull pain she reported developing at that time. He also was not persuaded that the pain was due to the obstructing tumor since it was localized and not crampy.

The November 8 letter was demonstrated by use of slides.

Defendant termed the alleged deviation as "A[.] diagnosing hemorrhoids, [and] B[.] telling her that the hemorrhoids were the source of the bleeding which [led] her to assume that there was no urgency to the test."

The modified questionnaire was marked C1, a copy of which is not provided in the appendix on appeal.

Both counsel agreed at oral argument on appeal that the plain error standard applies to issues on appeal respecting the November 8 letter as well as the jury instructions and interrogatories.

(continued)

(continued)

35

A-6468-05T2

March 5, 2008